Throughout most of its history, the Supreme Court has been been dominated by the forces of private property and white privilege. The Court has tortured the plain language of the Constitution to accommodate Southern apartheid, to disenfranchise minorities, and to tolerate the repression of labor unions and socialists. Progressives who look to the Court to enlarge American democracy ignore the history of the institution. Instead, they seek inspiration from the anomalous Warren Court of the 1950s and '60s. This book explains why.
"The Warren Court and the Pursuit of Justice" is a gem of popular legal history. It tells the story of how the Warren Court breathed life into the Constitution by ending school segregation, expanding freedom of speech, constitutionalizing state criminal justice systems, and requiring states to draw electoral districts on the principle of one man/one vote. Horwitz writes clearly and economically, and packs a great deal of legal, historical, and biographical material into a small space. His focus is not on technical legal doctrine. Instead, he aims to situate the Warren Court within the political and social history of the era, in the process offering the reader mini-essays on topics such as the civil rights movement and McCarthyism. His hero is William Brennan. His book is a total success.
For honoring our best democratic traditions, the Warren Court was vilified by racists, McCarthyites, and Richard Nixon. As Horwitz observes, "Impeach Earl Warren" signs blossomed in the states of the Old Confederacy. This was telling. Conservatives may hate to admit it, but modern conservative court-bashing predates Roe v. Wade by many years. Its social and political roots can be traced to the massive extralegal resistance to desegregation in the South. To the extent a Court can be judged by its enemies, the Warren Court was on the side of the angels.
That was long ago. The politics of the Supreme Court have undergone a seachange since the time of Earl Warren. No one should be surprised if the new Roberts Court pushes a conservative agenda that strengthens Presidents and prosecutors, while disempowering consumers, workers, and minorities. All the while, progressives will wring their hands and act as if the Court is betraying its traditions. In reality, it will be reverting to norm. Much will depend on who wins the White House and the Senate in 2008, for, as Horwtiz demonstrates, the bottomline is politics.
